What place should foreign law play in the role of United States judicial process when interpreting Constitutional provisions?
I think there are places where it is mot merely appropriate but necessary. I’d go so far as to say that a course in comparative law of at least one other nation should be a required course for law students as an examination of some other system would facilitate understanding of ours.
Foreign law can be a requirement when interpreting treaties especially where the USA position will bear on how another nation might interpret any given provision. Occasionally USA statutory law can implicate the provisions of a treaty and there may be a valid application of foreign law there also.
The foreign sovereign immunities act permits definitely requires the courts to examine the laws of lands where suites of American s may extend. Obviously where an American claims she was deprived her lawful possession of a thing it is necessary to look at the foreign nation’s laws to determine where there was a valid claim of ownership in the first place.
Another use of foreign laws inheres when one litigant insists that invoking a certain interpretation of our laws would result in some unacceptably wrong result. If for example that same interpretation was made on the same set of facts and circumstances in some other nation - and the wrong result didn’t subsequently arise it cam inform the court that on at least one other occasion things didn’t go all to hell.
I use foreign law all the time in my work as do most other s in my field. It is old English law – the law that was out springboard when we formed our Constitution. What was going through the minds of persons – who while drafting the US Constitution – remained Englishman? What ideas and ideals did they hold regarding thing such as cruel and unusual punichment,, or being forced to bear witness against oneself, or how a religion ought to - or ought not to – play a role in governmental operations.
Foreign statutes and case-law have come creeping into out judicial system in a back door manner and tend to be increasing in application. This is a bad thing because in the USA there is no distinction between a court construing a local statute and a Constitutional provision. Where foreign law becomes more common in US courts there will arise a tendency to apply it in matters of constitutional magnitude. This is a bad thing because there are reasons we are not just another little European country and it’s substantially more than geography. It is The profound political and philosophical distinctions that separate the USA from the European nations.
There arose a line of federal cases beginning with Sheriff/Coroner Jay Printz v. United States of America, 854 F.Supp. 1503 (D.Mont.1994) appealed to the US supreme Court in Printz v. U.S., 521 U.S. 898, 117 S.Ct. 2365, (1997), running to McGee v. U.S., 863 F.Supp. 321, (S.D.Miss.,1994) and recently Koog v. U.S., 79 F.3d 452 (5th Cir.1996) in which the courts had to construe a law that in effect required that a local state officer (sheriff) was required to expend resources and labor to carry out a requirement imposed by the federal government (brady bill). It was argued that other nations such as Germany, France, Switzerland, and the EU all have such requirements as to laws of the Central Federation.
The court held fast to the Constitution and the Tenth Amendment insisting on a separation of power and influence between the fed and the individual states. The court said about Justice Bryar’s dissent in Printz: “This separation of the two spheres is one of the Constitution's structural protections of liberty. “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”” (citing to Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395
(1991)).
this Court finds that Congress cannot direct and compel local sheriffs to carry out the provisions of the Brady Bill as is done in 18 U.S.C. § 922(s)(2). See also Sheriff/Coroner Jay Printz v. United States of America, 854 F.Supp. 1503 (D.Mont.1994) interpreting the same act and reaching the same conclusion as this Court.
Further the Supreme Court said that “Justice BREYER's dissent would have us consider the benefits that other countries, and the European Union, believe they have derived from federal systems that are different from ours. We think such comparative analysis inappropriate to the task of interpreting a constitution, though it was of course quite relevant to the task of writing one. The Framers were familiar with many federal systems, from classical antiquity down to their own time; they are discussed in Nos. 18-20 of The Federalist. Some were (for the purpose here under discussion) quite similar to the modern “federal” systems that Justice BREYER favors. Madison's and Hamilton's opinion of such systems could not be clearer. The Federalist No. 20, after an extended critique of the system of government established by the Union of Utrecht for the United Netherlands, concludes:
“I make no apology for having dwelt so long on the contemplation of these federal precedents. Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred. The important truth, which it unequivocally pronounces in the present case, is that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity••••” Id., at 138.
Antifederalists, on the other hand, pointed specifically to Switzerland-and its then-400 years of success as a “confederate republic”-as proof that the proposed Constitution and its federal structure was unnecessary. See Patrick Henry, Speeches given before the Virginia Ratifying Convention, 4 and 5 June, 1788, reprinted in The Essential Antifederalist 123, 135-136 (W. Allen & G. Lloyd ed.1985). The fact is that our federalism is not Europe's. It is “the unique contribution of the Framers to political science and political theory.” United States v. Lopez, 514 U.S. 549, 575, 115 S.Ct. 1624, 1638, 131 L.Ed.2d 626 (1995) (KENNEDY, J., concurring) (citing Friendly, Federalism: A Forward, 86 Yale L.J. 1019 (1977)).”
(that was a rare and remarkable statement from the Supreme Court. I get shivers when I read writing like that.)
In Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, (1958), foreign laws were consulted not as the guide by which to decide how to construe US law but as a rational articulation of the court’s decision to apply its construction of US law. The court in Trop said: “The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime.” The court went on to observe that other nations did in fact apply the expatriation of citizens for various reasons including crimes. But the court held that in the USA the Eighth Amendment forbade that practice.
In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002), the court found foreign law relevant in contemplating the application of the death penalty to retarded people. The Supreme Court, with Justice Stevens writing for the majority, held that executions of mentally retarded criminals were “cruel and unusual punishments” prohibited by Eighth Amendment.
At times it appears that the application of foreigh law is merely as an afterthought wherebyt the court is articulating it’s inner thoughts and taking a look around it.
At other times the Judiciary come dangerously close to using foreign law as a means to rewrite the US Constitution as was Justice Breyer attempting in Printz. As I noted Breyer wanted the Constitution to be seen as allowing the heavy hand of the Fed to force local state officers to carry out federal requirements.
Breyer is of the Living Constitutionalist position whish while invoking a rather appealing sentiment of keeping the Constitution apace with the needs and thinking of an evolving society is heading down the dangerous path of abrogating the Constitution while re-drafting it in bits and pieces through the judicial process of interpretation.
This is dangerous entirely because the moment one branch of government ( the judiciairy) assumes upon itself the poser to make different or re-write the US Constitution then the holding and the logic on Printz will be worthless.
Such an abrogation of the Bicameral system using a comparative analysis is inappropriate to the task of interpreting a Constitution quite simply because the Constitution forbids it. The courts should not conduct as though they are vested with some platonic power some super-divine wisdom that the people do not possess.
It is also wrong for the Courts to re-write the Constitution because the American people are fully capable of informing their legislators what is their will. And if the will of the people is such that the Constitution needs re-framing or amending the Constitution itself has a process by which that can occur. It is simply wrong for the courts to steal the power of the legislature and the executive and undertake to make the Constitution say things which it clearly does not.
The founding fathers did not aspire to be like the Europeans. Look at the confrontation clause. As late as 1993 France was allowing people to be sent to prison on nothing more than interrogatories (a list of questions that are answered on paper) and not by a witness. The French courts had no problem with this practice because as they said their judges could convince themselves that the answers to interrogatories were credible. There have been cases where the Courts were pressured to adopt a more lax interpretation of the Confrontation clause and the French were held up as the example to follow. Should the USA change it’s absolute requirement that an accused has an absolute right to confront the witnesses whose testimony may send him to prison or death? Should we do this on the sole theory that France does it and they say it works for them ?
France also allows lawsuits against the Executive branch but all such suits must take place in a special court that is controlled by the executive branch called the Counsel d'etat. The members of that court are all appointed by the executive.
Should we dispense with our Special Counsel and requirements that there be no conflicts of interest when the Executive is being investigated on the theory that the French are happy doing it their way?
De Tocqueville thought the French system was inherently corrupt and looked upon our system with praise. Should we change to be like the French ??
James Madison (Federalist #46) holds in contempt the European governments who are afraid to trust the people with arms. Should the US change it’s Constitution to be more like the Europeans?
In November of 2002, the Counsel of Europe approved what was called, an additional protocol to the convention on cyber crime which would make it illegal to distribute anything online which advocates, promotes or incites hatred or discrimination. A spokesman for the United States Department of Justice said, quite correctly, that this country could not be a party to such a treaty because of the First Amendment. If all of Europe thinks that such a provision does not unduly limit speech, should we reconsider?
The founding fathers didn’t make the Constitution and the Amendments so very different from what they saw in Europe for no reason at all. They found European systems to be shot through with built in corruption and unfairness.
Do you want you life or liberty to be at the mercy of a Italian French court and some witnesses whom you can never confront in court – or even know their names?
Merely because other nations do things a certain way is not reason for an American court to abrogate the Constitution on the tidy populist notion of an evolving living constitution that must be re-crafted daily to keep apace with the changes in society.
Would the framers have made it so very difficult for the Constitution to be amended if they wanted judges to redraft it on the fly?
The application of foreign laws when interpreting the US constitution is an abhorrent practice and should be eschewed.
I think there are places where it is mot merely appropriate but necessary. I’d go so far as to say that a course in comparative law of at least one other nation should be a required course for law students as an examination of some other system would facilitate understanding of ours.
Foreign law can be a requirement when interpreting treaties especially where the USA position will bear on how another nation might interpret any given provision. Occasionally USA statutory law can implicate the provisions of a treaty and there may be a valid application of foreign law there also.
The foreign sovereign immunities act permits definitely requires the courts to examine the laws of lands where suites of American s may extend. Obviously where an American claims she was deprived her lawful possession of a thing it is necessary to look at the foreign nation’s laws to determine where there was a valid claim of ownership in the first place.
Another use of foreign laws inheres when one litigant insists that invoking a certain interpretation of our laws would result in some unacceptably wrong result. If for example that same interpretation was made on the same set of facts and circumstances in some other nation - and the wrong result didn’t subsequently arise it cam inform the court that on at least one other occasion things didn’t go all to hell.
I use foreign law all the time in my work as do most other s in my field. It is old English law – the law that was out springboard when we formed our Constitution. What was going through the minds of persons – who while drafting the US Constitution – remained Englishman? What ideas and ideals did they hold regarding thing such as cruel and unusual punichment,, or being forced to bear witness against oneself, or how a religion ought to - or ought not to – play a role in governmental operations.
Foreign statutes and case-law have come creeping into out judicial system in a back door manner and tend to be increasing in application. This is a bad thing because in the USA there is no distinction between a court construing a local statute and a Constitutional provision. Where foreign law becomes more common in US courts there will arise a tendency to apply it in matters of constitutional magnitude. This is a bad thing because there are reasons we are not just another little European country and it’s substantially more than geography. It is The profound political and philosophical distinctions that separate the USA from the European nations.
There arose a line of federal cases beginning with Sheriff/Coroner Jay Printz v. United States of America, 854 F.Supp. 1503 (D.Mont.1994) appealed to the US supreme Court in Printz v. U.S., 521 U.S. 898, 117 S.Ct. 2365, (1997), running to McGee v. U.S., 863 F.Supp. 321, (S.D.Miss.,1994) and recently Koog v. U.S., 79 F.3d 452 (5th Cir.1996) in which the courts had to construe a law that in effect required that a local state officer (sheriff) was required to expend resources and labor to carry out a requirement imposed by the federal government (brady bill). It was argued that other nations such as Germany, France, Switzerland, and the EU all have such requirements as to laws of the Central Federation.
The court held fast to the Constitution and the Tenth Amendment insisting on a separation of power and influence between the fed and the individual states. The court said about Justice Bryar’s dissent in Printz: “This separation of the two spheres is one of the Constitution's structural protections of liberty. “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”” (citing to Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395
(1991)).
this Court finds that Congress cannot direct and compel local sheriffs to carry out the provisions of the Brady Bill as is done in 18 U.S.C. § 922(s)(2). See also Sheriff/Coroner Jay Printz v. United States of America, 854 F.Supp. 1503 (D.Mont.1994) interpreting the same act and reaching the same conclusion as this Court.
Further the Supreme Court said that “Justice BREYER's dissent would have us consider the benefits that other countries, and the European Union, believe they have derived from federal systems that are different from ours. We think such comparative analysis inappropriate to the task of interpreting a constitution, though it was of course quite relevant to the task of writing one. The Framers were familiar with many federal systems, from classical antiquity down to their own time; they are discussed in Nos. 18-20 of The Federalist. Some were (for the purpose here under discussion) quite similar to the modern “federal” systems that Justice BREYER favors. Madison's and Hamilton's opinion of such systems could not be clearer. The Federalist No. 20, after an extended critique of the system of government established by the Union of Utrecht for the United Netherlands, concludes:
“I make no apology for having dwelt so long on the contemplation of these federal precedents. Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred. The important truth, which it unequivocally pronounces in the present case, is that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity••••” Id., at 138.
Antifederalists, on the other hand, pointed specifically to Switzerland-and its then-400 years of success as a “confederate republic”-as proof that the proposed Constitution and its federal structure was unnecessary. See Patrick Henry, Speeches given before the Virginia Ratifying Convention, 4 and 5 June, 1788, reprinted in The Essential Antifederalist 123, 135-136 (W. Allen & G. Lloyd ed.1985). The fact is that our federalism is not Europe's. It is “the unique contribution of the Framers to political science and political theory.” United States v. Lopez, 514 U.S. 549, 575, 115 S.Ct. 1624, 1638, 131 L.Ed.2d 626 (1995) (KENNEDY, J., concurring) (citing Friendly, Federalism: A Forward, 86 Yale L.J. 1019 (1977)).”
(that was a rare and remarkable statement from the Supreme Court. I get shivers when I read writing like that.)
In Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, (1958), foreign laws were consulted not as the guide by which to decide how to construe US law but as a rational articulation of the court’s decision to apply its construction of US law. The court in Trop said: “The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime.” The court went on to observe that other nations did in fact apply the expatriation of citizens for various reasons including crimes. But the court held that in the USA the Eighth Amendment forbade that practice.
In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002), the court found foreign law relevant in contemplating the application of the death penalty to retarded people. The Supreme Court, with Justice Stevens writing for the majority, held that executions of mentally retarded criminals were “cruel and unusual punishments” prohibited by Eighth Amendment.
At times it appears that the application of foreigh law is merely as an afterthought wherebyt the court is articulating it’s inner thoughts and taking a look around it.
At other times the Judiciary come dangerously close to using foreign law as a means to rewrite the US Constitution as was Justice Breyer attempting in Printz. As I noted Breyer wanted the Constitution to be seen as allowing the heavy hand of the Fed to force local state officers to carry out federal requirements.
Breyer is of the Living Constitutionalist position whish while invoking a rather appealing sentiment of keeping the Constitution apace with the needs and thinking of an evolving society is heading down the dangerous path of abrogating the Constitution while re-drafting it in bits and pieces through the judicial process of interpretation.
This is dangerous entirely because the moment one branch of government ( the judiciairy) assumes upon itself the poser to make different or re-write the US Constitution then the holding and the logic on Printz will be worthless.
Such an abrogation of the Bicameral system using a comparative analysis is inappropriate to the task of interpreting a Constitution quite simply because the Constitution forbids it. The courts should not conduct as though they are vested with some platonic power some super-divine wisdom that the people do not possess.
It is also wrong for the Courts to re-write the Constitution because the American people are fully capable of informing their legislators what is their will. And if the will of the people is such that the Constitution needs re-framing or amending the Constitution itself has a process by which that can occur. It is simply wrong for the courts to steal the power of the legislature and the executive and undertake to make the Constitution say things which it clearly does not.
The founding fathers did not aspire to be like the Europeans. Look at the confrontation clause. As late as 1993 France was allowing people to be sent to prison on nothing more than interrogatories (a list of questions that are answered on paper) and not by a witness. The French courts had no problem with this practice because as they said their judges could convince themselves that the answers to interrogatories were credible. There have been cases where the Courts were pressured to adopt a more lax interpretation of the Confrontation clause and the French were held up as the example to follow. Should the USA change it’s absolute requirement that an accused has an absolute right to confront the witnesses whose testimony may send him to prison or death? Should we do this on the sole theory that France does it and they say it works for them ?
France also allows lawsuits against the Executive branch but all such suits must take place in a special court that is controlled by the executive branch called the Counsel d'etat. The members of that court are all appointed by the executive.
Should we dispense with our Special Counsel and requirements that there be no conflicts of interest when the Executive is being investigated on the theory that the French are happy doing it their way?
De Tocqueville thought the French system was inherently corrupt and looked upon our system with praise. Should we change to be like the French ??
James Madison (Federalist #46) holds in contempt the European governments who are afraid to trust the people with arms. Should the US change it’s Constitution to be more like the Europeans?
In November of 2002, the Counsel of Europe approved what was called, an additional protocol to the convention on cyber crime which would make it illegal to distribute anything online which advocates, promotes or incites hatred or discrimination. A spokesman for the United States Department of Justice said, quite correctly, that this country could not be a party to such a treaty because of the First Amendment. If all of Europe thinks that such a provision does not unduly limit speech, should we reconsider?
The founding fathers didn’t make the Constitution and the Amendments so very different from what they saw in Europe for no reason at all. They found European systems to be shot through with built in corruption and unfairness.
Do you want you life or liberty to be at the mercy of a Italian French court and some witnesses whom you can never confront in court – or even know their names?
Merely because other nations do things a certain way is not reason for an American court to abrogate the Constitution on the tidy populist notion of an evolving living constitution that must be re-crafted daily to keep apace with the changes in society.
Would the framers have made it so very difficult for the Constitution to be amended if they wanted judges to redraft it on the fly?
The application of foreign laws when interpreting the US constitution is an abhorrent practice and should be eschewed.
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